ORDER
(Passed this on 19th July, 2017)
Shri Shekhar P. Muley, President
01. This is a complaint against National Insurance Company for failure to settle the insurance claim of stolen vehicle.
02. The complainant is owner of TATA Truck No. CG-04-DB-8581, which was insured with the O.P. for I.D.V. Rs. 10,40,000/-. The policy was valid from 29/3/2009 to 28/3/2010. No terms and conditions of the policy were supplied to her. During subsistence of the policy the said truck was stolen in the intervening night of 11/6/2009 to 12/6/2009. The driver had left the truck in custody of the conductor, who had locked the driver cabin and went for natures call. When he returned the truck was missing. Police complaint was given, but police did not register FIR immediately. They asked the complainant to search the truck and if not found then report be given. But even after search it was not found. In the evening intimation was given to the financier telephonically and to the O.P. They asked him to give written intimation with copy of F.I.R. On 18/6/2009 written intimation was given to the O.P. After registration of F.I.R a claim was lodged with papers. However the O.P. did not settle her claim, which amounts to deficiency in service. Hence it is prayed to direct the O.P. to pay her claim amount Rs.10.40 lakh with 14.5% interest, compensation Rs.1 lakh for mental agony and cost Rs.50,000/-.
03 The O.P. filed reply and resisted the complaint. It is not denied that the complainant is owner of the truck and it was insured with it. But it is denied no terms and conditions of policy were supplied to her. It is further stated the complainant did not furnish all papers for verification of the claim. Theft of the truck is denied. It is also denied the truck was properly locked. It is denied delay in lodging F.I.R. was due to police as contended. It is also denied incident was orally intimated to the O.P. on 12/6/2009. as no immediate intimation of the incident was given to the O.P., and the truck was not properly secured form loss, there was breach of policy condition and therefore the complainant is not entitled to insurance claim. The claim was closed and the complainant was intimated by letter dated-24/7/2012. As such there was no deficiency in service and hence complaint be dismissed.
04. We have heard Ld counsels for both the parties. Perused documents and rejoinder. Upon consideration of the same we record our findings and reasons as under.
FINDINGS AND REASONS
05. The counsel for the O.P. submitted the claim was repudiated for delay in giving intimation of theft to the O.P. and for failure to take reasonable steps to safeguard the truck from loss or damage. Because of this there was breach of condition no. 1 and 5 of the policy contract and therefore the O.P. is not liable to pay insurance claim.
06. Counsel for the complainant submitted there was no delay on the part of the complainant, but delay was occasioned due to police who did not lodge the complaint immediately. There was one letter from the O.P. to the complainant on 24/7/2012 by which it was informed that he had committed breach of policy condition no. 1 and 5 and if she did not agree to the decision she was asked to clarify within 7 days why the claim should not be repudiated, else the claim would be closed as repudiated. It is contended by this letter the complaint was given time to clarify about alleged breaches but thereafter no repudiation letter was given. So the claim is still pending.
07. In fact, as per this letter the claim was already closed as repudiated. The complainant was only called upon to clarify her stand if she did not agree with the decision. The OP has stated the repudiation was done and communicated on 24/7/2012. Even assuming for a while that there was no repudiation letter to the complainant, the question is, whether the O.P. is liable to indemnify the complainant. The O.P. has two objections to admit the claim, delay in intimating the incident to the O.P. and failure to take steps to safeguard the truck from loss. We shall now see whether there is breach of these two conditions.
08. There was admittedly delay in giving intimation of theft to the O.P. As per policy condition No.1 it is incumbent upon the insured to give written intimation of loss or damage of insured vehicle to insurer immediately. As per condition No.5 all reasonable steps are to be taken to safeguard the insured vehicle from any loss or damage. So far as delay is concerned, it is submitted by counsel for the complainant that after being informed by the driver of the truck of theft, her husband had informed the O.P. by personally visiting the office. But he was asked to give written intimation with copy of F.I.R. By that time F.I.R. was not lodged because police had asked him to search the truck for some time and if not found then lodge report. It was only on 18/6/2009 F.I.R. could be lodged, therefore there was delay in giving written intimation to the O.P. It is thus submitted there was no delay on the part of the complainant. Ld counsel for the complainant has relied on some judgments on this point, which are us under.
- Baljeet Charan Singh v/s United India Insurance Co. Revision Pet No. 454/13 decided on 2/12/2013 (NC)
- National Insurance Co v/s Nitin Khandelwal Civil Appeal No. 3409/2008 decided on 8/5/2008 (SC)
- National Insurance Co v/s Kulwant Singh Revision Pet No. 2719/14 decided on 18/7/2014 (NC)
- National Insurance Co v/s B. Venkataawamy Revision Pet No. 2852/13 decided on 6/2/2014 (NC)
- National Insurance Co v/s Deputy Manager Revision Pet No. 643/2005decided on 16/9/2009 (NC)
- IFFCO Tokio Genaral Insurance Co. v/s Ram Gopal Soni Revision petition No. 170/12 decided on 31/5/2012 (NC)
- National Insurance Co v/s Shri Mayur Raj Singh Revision Pet No. 3558/12 decided on 1/10/2012 (NC)
In all the above cases the insurance company was directed to allow claims, even though there was delay in intimating the theft of vehicle to insurance company. In some cases facts were different and delay was explained which found favour with Hon´ble National Commission. While allowing the complaints, a Circular issued by the IRDA was considered. Said Circular dated 20/9/2011 pertains to delay in claim intimation/ documents submission with respect to all life insurance contracts and all non -life individual and group insurance contracts. By the said Circular the insurers are advised to condone delay on merit, for delayed claims, where delay is proved to be for reasons beyond the control of the insured. Relying on this Circular the claims were allowed, though there was delay in filing claims.
09. If the F.I.R. and other documents filed by the complainant are perused it would be seen that the F.I.R. was actually given on 1/7/2009 and not on 18/6/2009 as stated by her. The incident occurred on 12/6/2009. Thus there was delay of 18 days in lodging F.I.R. and giving intimation to the O.P. It is mentioned in F.I.R. that delay in giving report was from the complainant. Apart from oral statement of the complainant that due to police there was delay in giving report, no evidence in given in support of such statement. Further, it it stated by her that when her husband had gone to give intimation of theft to the O.P., he was asked to give written intimation along with F.I.R. However, the written intimation to the O.P. on 18/6/2009 does not reveal such fact that the O.P. had asked her to file copy of F.I.R. with intimation. There is thus no proper and acceptable explanation for delay in giving intimation to the police and not only that, there was considerable delay in giving report to police too. In Ramavtar v/s Shriram General Insurance Co MANU/SCOR/34946/2014 (SC) delay in giving intimation of theft of vehicle to insurance company is held fatal. Filing of a report with police about the factum of theft would not discharge the liability of the insured to intimate the insurer. Therefore there is clear breach of condition no.1 of the policy.
10. So far as condition no 5 is concerned, it is stated by the complainant that the driver had locked the cabin of the truck and went to answer natures call. On return, the truck was not found. The O.P. has alleged no reasonable care was taken to safe guard the vehicle for loss or damage and therefore it is not liable to indemnify the loss. On what basis the O.P. has alleged so is not explained. Even assuming that there was no proper care to safeguard the vehicle, the claim should have been settled on non standard basis.
11. It appears the complainant did not supply necessary papers or cooperate with the investigator of the O.P. Letters were given to the complainant to make available certain documents. But the same were not supplied. Further no opportunity was given to record statement of the driver and cleaner. The complainant informed that the driver had left the job soon after the incident. But she could have supplied documents. Further, it is alleged that the O.P. has not intimate any decision on her claim till date. On the contrary, the claim was repudiated long back and it was informed by letter dt14/8/2012. It was received by the complainant as per postal acknowledgment. Thus the complainant has come with suppressed facts.
12. It is alleged by the complainant that no terms and conditions of the policy were supplied to her and hence, the O.P. cannot take help of exclusion clause. Reliance is placed on New India Insurance Co v/s Jagat Singh Revision Pet No. 3619/12 decided on 1/2/2013 (NC). However, in that case, this contention of the complainant had remained unchallenged in the reply of the insurer. Therefore, it was held that when exclusion clause was neither part of the contract of insurance nor disclosed to the appellant, the respondent cannot claim benefit of the said exclusion clause. But in the present case this allegation of non supply of terms and conditions has been refuted by the OP in reply. Besides, no such grievance was ever made before filing the complaint. Hence, we do not find merits in this allegation of the complainant.
13. In the result, there being clear breach of condition No.1, being late in intimating the O.P. about theft of the truck, the O.P. is absolved from settling the claim. The claim is rightly repudiated. The complaint is therefore liable to be dismissed. Hence, the following order.
ORDER
- The complaint is dismissed with no order as to cost.
- Copy of judgment and order be given to both the parties, free of cost.
